United States: Social Media Policies And The NLRB: What Employers Need To Know

Social media policies. Chances are your company has one, is in
the process of drafting one, or is worried about not having one.
Employees continue to gripe about their jobs and their bosses on
Facebook, as states like California enact legislation prohibiting
employers from demanding access to employees' social networking
pages. Meanwhile, employers are left to navigate the murky waters
of social media regulation without much in the way of clear
direction.

Once considered merely an enforcer of union laws and
regulations, the National Labor Relations Board ("NLRB")
has found new life in the modern world of social media. In large
part, this is true because the NLRB's actual charge is much
broader than many employers realize: the NLRB's primary
responsibility is interpretation and enforcement of a federal
statute called the National Labor Relations Act ("NLRA"),
and the NLRA applies to all employers, unionized or
not. Most relevant to the area of social media, the NLRA
protects an employee's right to engage in "concerted
activity," which occurs under Section 7 of the statute
"when two or more employees take action for their mutual aid
or protection regarding terms and conditions of employment."
The NLRA's protection of "concerted activity" covers
many different activities, including employee discussions about
pay, work conditions, or even safety concerns. In light of the
provisions of the NLRA, which apply regardless of whether employees
are organized under a collective bargaining agreement, employers
desiring to implement a social media policy must walk a very fine
line between prohibiting unwanted conduct – such as revealing
confidential information or making disparaging comments about the
company – and avoiding undue restrictions on protected
activities.

A great many employers are finding that walking this line
effectively is a struggle. Through the Costco, Dish
Network, and Knauz decisions, as well as prior advice
memoranda, the NLRB has attempted to provide employers with
guidance on what will and will not pass muster under the NLRA. The
Board and its General Counsel have analyzed myriad policies and the
General Counsel even blessed what he considered to be an acceptable
policy. So far, the NLRB's memoranda and decisions provide the
only real guidance regarding the intersection between social media
and Section 7 rights; unfortunately, this guidance is not intuitive
for employers, at times seems inconsistent, and can be difficult to
interpret. Adding to the uncertainty, the NLRB has been overruled
before and ultimately the courts will need to weigh in on this
issue, especially in light of recent challenges to the
President's 2012 appointments to the NLRB, which jeopardize the
validity of its rulings for the past year. Still, even with the
pending challenges, the NLRB has continued its focus on overbroad
workplace policies, including in a recently published advice
memorandum from the General Counsel. Thus, until further word to
the contrary, employers should be mindful of the NLRB's stance
on social media policies and protected activity.

Generally, the NLRB and its General Counsel have taken a fairly
expansive reading of social media (and other workplace) policies in
assessing their impact on protected activity. For example, in the
Costco decision, the NLRB held that a provision in
Costco's employee handbook prohibiting employees from
electronically posting statements that "damage the company,
defame any individual or damage any person's reputation or
violate the policies outlined in the Costco Employee
Agreement" violated the NLRA by chilling Section 7 rights. The
Board specifically pointed out that the provision did not include
"accompanying language that would tend to restrict its
application," therefore allowing employees to "reasonably
assume" it applied to protected concerted activity. Later, in
the Dish Network decision, the Board affirmed the
Costco decision by holding that similar language in
Dish's social media policy prohibiting "disparaging or
defamatory comments" about the company violated the NLRA.

Fortunately, the NLRB has recognized that not all of an
employee's online activity – even when addressed to
workplace matters – comprises protected activity. Thus, in
the Knauz decision, the NLRB found that the employer did
not violate the NLRA when it terminated an employee for
his Facebook commentary on a car accident at an adjacent,
employer-owned dealership, since the comment was not related to his
terms and conditions of employment. Still, even though the
termination was lawful, the Board nonetheless found that the
employer's "courtesy" rule – which required
employees to be "courteous, polite and friendly to customers,
vendors and suppliers [and] fellow employees" and disallowed
"disrespectful ... or any other language which injures the
image or reputation of the [employer]" – violated the
Act.

These cases are perfect examples of how employers'
well-intentioned language can inadvertently violate the NLRA. But
they also provide some degree of guidance on what the NLRB
considers acceptable (and not) in social media policies. Distilling
this guidance into a few concrete tips, employers should do the
following when drafting social media policies:

Be mindful of the NLRA. This statute applies to your
business whether you realize it or not, and regardless of whether
any portion of your workforce is unionized. It is therefore best to
avoid overbroad statements and ambiguous words that could be
interpreted to "chill" Section 7 rights. The NLRB has
disfavored terms and phrases such as "confidential
information" and "disparaging comments" –
without further explanation or context – as being too vague
and likely to violate the NLRA.

Provide examples whenever possible. The NLRB has
repeatedly indicated that a particular policy might have been
lawful if it had included specific examples of prohibited conduct.
Thus, instead of stating that the policy prohibits
"inappropriate behavior," consider providing examples
such as harassment, bullying, etc.

Include a savings clause. These clauses exclude
protected Section 7 activity from the scope of a social media
policy. Although (per the NLRB) a savings clause will not cure an
otherwise unlawful and overbroad policy, it might cure a slightly
flawed policy, and there is no downside to including it.

In the end, social media policies are not a "one size fits
all" proposition. They must be tailored to fit the employer
and drafted to avoid violating the NLRA.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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